Agricultural Brief - Permissive access to the countryside - will ELMS help?


04 January 2021

It used to be the case that a landowner could provide permissive footpath access over their land within Countryside Stewardship schemes run by Defra and managed by Natural England. Such schemes enabled landowners to respond to local requests for access, without concern that new public rights of way would be created.

For landowners, as well as the financial incentive, permissive access could resolve problems with trespass and help build positive relationships with local people - perhaps securing local support for future land use proposals. For local people there were major benefits: schemes could provide a safe, shortcut route to the local school away from traffic, create an extra link between existing footpaths to complete a circular walk for dog walkers or provide access to interesting features and habitats not accessible along the established public rights of way network.

The option to enter into a permissive access agreement was removed from Higher Level Tier Countryside Stewardship schemes some years ago and almost all existing agreements have now come to an end. In some cases landowners have kept routes open, largely under pressure from local walkers but in many cases, access has reverted to that to which the public are legally entitled: mainly public rights of way and open access land. We have heard of local grumbles aimed at landowners where access has - quite fairly and properly - been closed to enable the land to be managed differently on conclusion of an agreement. We have heard of landowners under pressure to continue access via a new agreement with their parish council, providing access without payment. In a couple of cases we have heard of misconceived attempts to claim closed permissive routes as public rights of way.

It is not difficult to make a case for allowing landowners the option of entering into new permissive path schemes post-Brexit. This year has seen extraordinary pressure on parts of the public rights of way network, with the public taking to walking in the countryside as one of the few forms of exercise left during lockdown periods. In addition, the Government’s White Paper Planning for the Future promotes cycling and walking for sustainable travel, while health professionals continue to promote walking as the perfect regular exercise for many. Both recognise the wellbeing that results from being outside and, especially, in the countryside.

Consideration of the Government’s new Environmental Land Management (ELM) Schemes - where public money is to be provided in exchange for public goods - raises the thought that new support for public access to the countryside would be an obvious ‘public good’. So are permissive path agreements back on the agenda? In November, Defra published some detail on how farming would look and be supported after Brexit in The Path to Sustainable Farming: An Agricultural Transition Plan 2012 to 2024. New for Countryside Stewardship agreements starting from 2021 is the inclusion in Mid-Tier agreements of schoolchildren visits to farms “for educational experiences and for care farming visits”. Perhaps this is the start of a new generation having more understanding of, and interest in, how the countryside ‘works’? However, at present there is no information on any other public access in ELM Schemes, either by arranged visits, or along permissive paths.

There is still plenty of time for this to happen and perhaps proposals will be included, given that further announcements are due during 2021. One source indicates that landowners may be paid for making improvements to public rights of way, to make the network more accessible for all. Where routes still have stiles along them, perhaps farmers will be paid to replace them with kissing gates, easier for less mobile walkers? This could certainly be seen as public good.

In the meantime, walking, and the demand for access by local people, inevitably puts pressure on landowners to keep recorded routes clear and to ensure that walkers do not stray over land in an uncontrolled way. Any permissive access certainly needs to be controlled: by on-site signing to bring the basis upon which access is permitted to the attention of the user and perhaps by an agreement with the highway authority or parish council. This can set out important details such as maintenance responsibilities and where liability for the public’s presence rests. The worst case is to tolerate walkers with no management and to a degree that a new public right of way may come into existence.

Permissive access can be a win-win - but it does need to be managed, and if management is not provided within any government scheme for the foreseeable future, it falls to the landowner to take charge.

This article is from the winter 2020 / 2021 issue of Agricultural Brief, our newsletter for farmers, landowners and others involved in agriculture. To download the latest issue, please visit the newsletter section of our website. 

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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2021.

Author

Carol Ramsden

Senior Associate (Rights of Way Executive)

+44 (0)1473 406338

+44 (0)7854 834139